The Legislature’s First Job Is Not to Legislate

Defenders of Sen. Harry Reid’s triggering of the “nuclear option,” ending the filibuster for all Executive Branch nominees save those to the Supreme Court, call it a triumph for democracy. Hogwash.

Democratic governance isn’t about a majority doing whatever it wants, much less when that involves advancing a president’s agenda. Congress, in effect, has abandoned its purpose within our system of separation of powers, and needs to turn back.

As every child in America learns in civics class, Congress, as the legislature of the United States, has as its primary job to pass laws. But its responsibilities don’t end there. Congress’s functional role is to legislate, but it has an equally important structural role within our system of government: to check the powers of the other branches, especially the Executive. Unfortunately, Congress has abdicated its checking role, leading to the overly mighty Executive of today.

The Constitution is notably vague about legislative and executive powers. This should not come as a surprise. America is, after all, a common law country, where law is discovered by Courts rather than made from on high by Monarchs or Lawgivers. So, under a common law system, statute law is to be reserved for matters of great national import that must be debated by the people’s representatives.

The First Congress, which set a new country under way, would be derided today as a “do-nothing” Congress, having passed only a handful of laws, all of which were reasonable laws for a federal government, and none intruded on state power. But another major distinction between then and now is that lawmakers didn’t see legislation as an end in itself.

What, then, is the point of the legislature? For that, we can look at three struggles that helped shape the American view of government and division of powers — the English Civil War, the English “Glorious Revolution,” and the American Revolution itself.

Each pitted an Executive on one side and the people’s representatives on the other. The English Civil War was triggered by Charles I’s taxation demands, the Glorious Revolution by James II issuing edicts and ignoring laws, and America’s War of Independence by a combination of both outrages. Parliament and the Continental Congress acted to put a brake on the Executive’s power and constrained it.

Under the Constitution, the Executive is to act as the magistrate executing the statutory will of Congress. With few laws, the Executive had few powers, and still depended on Congress to provide the money to exercise the powers it did hold, like waging war.

Within Congress, the Constitution designated the House of Representatives to function as the prime instrument of the people’s will, and the Senate to advise the House and the President, a place where objections were to be brought up rather than overruled.

Yet over the years, especially since the New Deal, Congress has granted more and more powers to the Executive, though hundreds and hundreds of laws. Worse, many of those laws empowered the Executive to make more laws through regulatory rulemakings that are never voted on by the people’s representatives. As my colleague Wayne Crews notes, in 2011 agencies finalized 47 rules for every law Congress passed. The Dodd-Frank law passed in 2010 following the financial crisis called for almost 400 rulemakings.

Each of these rules has the force of law, and the protections afforded to trial defendants don’t apply. Mere technical violations can bring ruinous penalties or even jail time — regardless of intent. And as journalist Radley Balko, author of The Rise of the Warrior Cop, has chronicled, agencies like the Fish and Wildlife Service have even sent SWAT-like teams to deal with paperwork mistakes.

Nor do regulations necessarily have the effect Congress intended. As the Wall Street Journal commented on one recent financial regulation which takes almost 900 pages to implement:

The long, convoluted Volcker [Rule] process and result illustrate the central problem of Dodd-Frank: the belief that regulators given ever more discretion to craft ever more complicated regulations will yield a safer financial system. The Bank of England’s Andrew Haldane and Vasileios Madouros have shown the opposite is true. The complexity of banking rules before the crisis failed to prevent catastrophic risks and made the job of addressing the crisis harder by obscuring the true condition of giant banks.

Enough. Congress needs to rediscover its checking role on the Executive. Not only should it say “No” to the President more often, it should stop delegating decision making power to the White House and the regulatory agencies.

What can Congress do to that end? There are two things.

A good start would be to appoint a Bipartisan Regulatory Reduction Commission to review the most expensive, burdensome rules, as well as ones that have outlived their purpose. It would then submit to Congress a package of rules to repeal, subject to an up-or-down vote, without amendment. Such a model served the Base Realignment and Closure commission well.

Then, it should move to repeal many of the laws that granted the Executive excessive power to create those burdensome rules in the first place.

For the Congress that enacts those reforms, being seen to be “doing something” may finally do some good.